Scottish Court of Session Decisions

Subject_1 RES INTER ALIOS.
Subject_2 SECT. I.

Proof.

Martha Wright, and Ensign David Kinloch her Husband,
v.
Alexander Lindsay, Merchant in Edinburgh

Date: 2 January 1708
Case No. No 19.

An oath emitted before arbiters chosen by the deponent and another party for clearing merchant-dealing betwixt them, conform to a submission, bearing a consent to take their oaths, probative of a ground of compensation therein acknowledged, to meet a debt charged for by the deponent's assignee, altho' the submission broke up without taking effect.

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In a process at the instance of Martha Wright and her husband, against Alexander Lindsay, for payment of L. 813 Scots, contained in a bond granted by him to the deceased Alexander Wright, merchant, and assigned by him to the said Martha Wright, his daughter; Alexander Lindsay proponed compensation for the sum of L. 541, acknowledged by the cedent to be due by him to Mr Lindsay, in his oath given before Sir William Calderwood and Mr William Forbes, advocates, arbiters chosen by both parties, for clearing of merchant dealing betwixt them, conform to a submission bearing a consent to take their oaths; which oath is signed by the deponent and arbiters.

Alleged for Martha Wright; An extrajudicial oath cannot found a reason of compensation.

Replied for Mr Lindsay; 1mo, It is laid down as a principle by my Lord Stair, B. 4. Tit. 44. § 7, That even extrajudicial oaths of verity afford both action and exception, whether ultroniously emitted, or upon transaction or reference of parties; yea, it is only since the act 19th, Parl. 3d, Charles II., that minors could be restored against their extrajudicial oaths, and casus omissus habetur pro omisso; 2do, This may be termed a judicial oath, being emitted before arbiters authorised by law, and express consent of parties in the submission to take the oath; and there is a great difference betwixt a consent to take an oath of party as in this case, and the taking of witnesses' oaths; 3tio, Though such an oath of party taken by arbiters were not probative as an oath, it is a sufficiently probative acknowledgement of the debt, being subscribed by the deponent and arbiters, who were as good as witnesses. And if a simple extrajudicial subscribed declaration would be probative against the granter; such a declaration upon oath subscribed by the deponent and two arbiters, cannot be less obligatory.

Duplied for Martha Wright; The oath having been emitted upon a view of ending all debates by the submission, and the submission having broke up without taking effect; the oath as accessorium must fall in consequence. 2do, The distinction betwixt taking oaths of witnesses, and the oaths of parties, is groundless; for the taking oaths being actus jurisdictionis, such a power granted by private parties is a non habente potestatem.

The Lords found, That the oath emitted before the arbiters is probative.

Fol. Dic. v. 2. p. 349. Forbes, p. 217.